Law in the European Union (EU) is at the forefront of proposing the fundamental right to personal data protection. This book reveals the steps leading to the emergence of the new understanding of rights while indicating the intricacies of its relationship with privacy. Moreover, personal data protection seems destined to displace the right to privacy.
Key questions emerge from this inquiry: How did a redefinition of privacy in the US during the 1960s fail to evolve as the EU concern for personal data protection did? How did the new right arise in EU law? How could the EU Charter of Fundamental Rights claim to render “more visible” an invisible right? Finally, how did EU law allow for the creation of a new right while ensuring consistency with existing legal instruments and case law?
The evolution of the EU’s involvement in these questions since the 1970s is reviewed up through the introduction of legislative proposals in 2012. Of particular interest are the changes in law by language, and in particular, by the coexistence of languages and legal systems that determine meaning in EU law. The EU law embracing multilingualism and the challenging notion of untranslatable words results in a profound way of understanding legal change.
Interestingly enough, Fuster believes that rights, in this case, personal data protection, are created by charter. The invisible right, since it was not mentioned in any sources for the Charter throughout the preamble, was made more visible once articulated in law. Fuster examines the dialogue between legal literature and international, European, and national legal systems.
Privacy as a natural right is the historical construction of personhood, which originated in early Christianity, developed in the Middle Ages, and was codified in Enlightenment constitutions. Privacy is the shelter of the individual against the arbitrariness of state power. The American legal notion of privacy developed before computers as the right to privacy based on the idea of a right to be left alone. By the mid-1960s, in US civil law, the idea of privacy protected the private affairs of people, the disclosure of private facts, and the use of a person’s image; in constitutional law, privacy was the right to refuse interference from public authorities. Several notables in the 1960s and 1970s warned that obtrusive and unchecked computer data collection limited the right to control the circulation of information about individuals. By the mid-to-late 1970s, privacy protection of unwarranted data collection was recognized in government sources as an individual right.
Nonetheless, it was in Europe that privacy concerns grew paramount although not necessarily in regard to computer applications. Numerous European countries borrowed the Anglophone word “privacy” to clarify their cultural understanding. Finally, France, Sweden, and Germany were “among the first countries to adopt special legal instruments to regulate the processing of personal data in order to reinforce the legal protection of individuals” (page 49).
The shift during the 1970s entailed the surfacing of national norms on data processing in Europe. Datenschutz, data protection, originated in 1970 with the German federal state of Hesse. Primarily, the drafters of Datenschutz regarded the US as their inspiration. However, US government policy did not follow suit with the Hessian data protection while Datenschutz predominated throughout Europe. While broadly analogous to US privacy law, the spread of norms entered a new phase in the 1980s when international organizations started to adopt legal instruments on the subject.
The most significant of the international organizations is the EU since, during the 1970s, data regulation began as an EU fundamental right. As most often enshrined in law, the formula that data protection serves (in particular) privacy became the norm. National laws on the processing of data about individuals were formalized as data protection. In a pre-computer age, the privacy of the home was sacrosanct; thus, in a data-drenched age, the invisibility of a private home was applied to protecting data about individuals. In other words, there was a semblance of an equivalence between the notions of privacy and data protection.
Fuster regards EU law as contingently entangled with its member states over the issue of data protection. A number of member states historically have not envisaged the protection of personal data from the perspective of the right to privacy. It would be fair to characterize the differing understandings of data privacy as an unstable connection between the EU and member states.
The work is illuminating and has taken on more importance in light of more recent revelations of inter-state surveillance and the disputed rights of individuals in an information age in numerous nation-states.